Law-Skepticism On The New Right

A Sympathetic Critique

One of the difficulties that afflict the classical lawyer is the constant need to fight a war on no less than three fronts. On the first, there are legal liberals (or “progressives”; there is no important difference) who instrumentalize the law and the rule of law in the service of a particular and highly sectarian agenda, an endless project of human liberation from all unchosen duties and constraints — even duties to the state and the family, and the constraints of biology. On a second front, there are the positivists of legal conservatism, the so-called originalists and textualists, whose view rests on a false dichotomy between “the meaning of positive law as fixed at the time of enactment” and “the judge’s own subjective preferences or values” — as though there cannot be real law that is not positive law, and that is not just the willful preference of the judge.¹

The ironies here are manifold. The legal conservative’s so-called “originalist” view would have been almost entirely foreign to the founding generation, who overwhelmingly shared the classical legal view that there is law beyond, behind and above the positive law willed by the civil lawmaker, including natural law, divine law, and the law of nations. Despite battling each other endlessly, the legal liberal and the legal conservative share the fundamental modernist assumption that all real law is the product of human will, ultimately stemming from the Hobbesian view that auctoritas non veritas facit legem (authority, not truth, makes law), by way of the core positivist view that the existence of law is one thing, while its merit or justice is another. The two camps locate and identify sovereign human will differently; for the liberal, it is the current will of “living” constitutionalism, whereas for the conservative, it is the fixed will of past lawmakers. But the fundamental enterprise is the same, and their apparent struggle is really a family quarrel. So-called legal conservatism is really just a variant of legal liberalism.

The classical lawyer, by contrast, holds that although civil or municipal law is partly made by human will, through the civil lawmaker’s “rationally arbitrary” specification or determinatio of background principles of legal justice, there is also law not chosen by human will — law that is ipso jure, legally binding in its own right, and that really exists apart from what human beings choose. In that sense, the classical lawyer holds that at least sometimes, veritas non auctoritas facit legem. And it is not possible, the classical lawyer holds, to read even the semantic meaning of legal texts without implicitly or explicitly drawing upon a rich set of normatively-grounded maxims and presumptions — for example, that the lawmaker means to promote the public interest, rather than the interests of his nephew or himself — that are the meat and drink of judging in the classical tradition.

These debates have already become familiar. There is however also a third front on which the classical lawyer must do battle, one that becomes more prominent by the day. On this front, the classical lawyer is faced with various elements of the “New Right” who, like the critical legal theorists of the left, are skeptical that there exists any real law at all, except in the minimal sense that some men have the power to enforce their will on other men through rules. In this sort of view, all law is more or less malleable with enough work, and law-claims are at bottom nothing more than a thin mask for power relations. Might makes right; the sovereign is he whose will, backed by power and force, makes “law,” a tool by which the powerful enforce their ideological or partisan agendas. Therefore, the New Right law-skeptics hold, “we” ought to enforce our will on “them”; after all, the only alternative is that they will enforce their will upon us.

This describes a floating and diffuse tendency, not universally shared on the New Right, which is not one thing, and which is as internally heterogeneous as any other political and ideological movement. (Hence I do not speak of the New Right tout court, but more specifically of New Right law-skeptics). And there is not yet any canonical New Right text distilling these ideas, at least in any form recognizable to legal theorists. But it is an unmistakable tendency nonetheless. The key point is that the New Right law-skeptics, for whom law is founded solely in human will, are like the legal liberals (including the “conservative” variant), just in mirror-image; all are ultimately Hobbes’ descendants. The difference is merely that the New Right law-skeptics want the might that supposedly makes right to be held and controlled by the New Right, for different purposes.

Although I reject these views, I have a certain sympathy for the people who hold them, if only because I understand the dilemmas inherent in the concrete political and legal situation the New Right law-skeptics mean to address; hence the sympathetic critique. Let me explain first the sympathy and then the critique.

On one level, it is perfectly understandable that many on the New Right have veered towards versions of law-skepticism. It is a natural overcorrection to the world around them, one in which the fanatics and cynics of liberalism appropriate the “rule of law” for transparently ideological, sectarian and indeed partisan ends. In that world, our world, talk of “the rule of law” and “human rights” becomes a vehicle for enforcing grotesqueries of the liberal programme, as in a notorious USAID document during the Biden years that said the rule of law requires adopting gender ideology. In that world, our world, prominent law professors openly thirst to crush dissenters from legal liberalism, comparing them to the defeated Nazis. When told by both the legal left and by legal conservatives that authority in the sense of positive will, not truth, makes the law, and that law only ever enforces the will of some sovereign upon others, it is perfectly understandable for the New Right to think: “Very well then. Let us become the sovereign, and we will enforce our will upon our enemies, doing unto them what they have been doing unto us for years.” If, as Carl Schmitt said,² law under liberalism becomes a poisoned dagger with which factions stab each other in the back, it is not hard to think: better to be the one wielding the dagger.

However understandable, this attitude is indeed an over-correction. Finding themselves in a situation of tragic conflict in which the law has been corrupted by both the legal left and by legal conservatism in fundamentally similar ways, the New Right law-skeptics erroneously infer that there is no such thing as law at all, or at least that all law is just the expression of power. This is a non sequitur, akin to saying that if I discover that the judge before whom I appear has corruptly taken bribes from the opposing party, therefore there is not and never has been such a thing as honest judging. The New Right law-skeptics erroneously over-generalize, deriving speculative theoretical views from the grim realities of the unusual practical situation in which they find themselves.

To be sure, one might believe that fire must be fought with fire — that as a matter of lamentable necessity, licit only in cases of tragic conflict, the only way to restore real law as a stable equilibrium is to wield power willfully in a tit-for-tat game with legal liberalism. And certainly it is generally a sound practical maxim that when one is in a fight, the important thing is to win it, at least in cases of the natural right of self-defense, and within the bounds of permissible means. And finally it is perfectly intelligible to say — indeed I have been arguing for years, albeit without any pretense at originality — that the state, rightly understood, actively orders law to the common good. But whatever the merits of these counsels, one may hold all or any of them in the practical order without holding, in the speculative order, that law really is just nothing more than the will to power. The practical counsels do not entail the theoretical conclusion. And as I will explain shortly, even as practical counsels they are deficient, insofar as they underestimate the need for power and force to rule by and through genuine law.

The basic over-generalization of the New Right law-skeptics — the left has wielded law as a weapon, therefore law is nothing more than a weapon of the powerful — is linked to a claim or set of claims that often arise in and around these issues. These claims urge that the rule of law is really the rule of men; that it is inevitable that some men will rule others, and that law not ultimately grounded in power is vain and ineffective; that any given people, constituted (in a small-c sense) as a political society, makes the law as an expression of themselves; and that order must precede law and provides the stable preconditions for law.

All these claims fall into the category of important but misleading half-truths. Of course human law is in part an expression of a given political community. But any concrete political community, in virtue of being also a human community, both makes its own particular law and also participates in the universal law, accessible to human reason. As the jurist Gaius put it near the very beginning of the classical tradition, “all peoples who are governed by laws and customs use partly their own law, partly law common to all mankind.”³ Of course law in any human community is incarnated, enforced and stabilized by men with power ensuring order; and, as Ricardo Calleja explained, one of the fictions of liberal legalism is that law can be made entirely depersonalized and abstract, as though no one in particular rules and no one exercises power over others. But the order of civil peace enforced by authority, tranquillitas ordinis, is an order of legal justice, not merely force. The tranquility of order impounds justice, in the classical sense of giving to each their proper due. Peace and Justice are “two sisters in close embrace.”

If and when men rule in a genuine sense, when they exercise genuine, embodied authority as the union of power and justice, it is because they rule through ordinances of reason; and reason discerns but not does not create natural and divine law. The very foundation of the rule of law in the classical tradition is the free assent, the “fiat,” of men with power who submit their will to governance by and through rational law, and thereby attain the full dignity of authority. As the Emperors Theodosius and Valentinian put it, “[i]t is a statement worthy of the majesty of a reigning prince for him to profess to be subject to the laws; for our authority is dependent upon that of the law. And, indeed, it is the greatest attribute of imperial power for the sovereign to be subject to the laws.” At least in their less cautious moments, figures of the New Right who are drawn to monarchy often ignore the bedrock classical distinction between legitimate monarchy, defined as rule by one man according to the fundamental laws and customs of the realm, including respect for property rights,⁴ and on the other hand tyranny or despotism — or, in Jean Bodin, the distinctions among monarchie royale, monarchie seigneuriale, and monarchie tyrannique.

Even on a purely practical level, law-skepticism is a poor posture, evidence of a kind of political weakness. Those who properly bear the responsibility of rule know that force cannot reliably be the only basis of the state, at least not for very long; one must also appeal to the reason of those ruled. As none other than Schmitt put it, “No political system can survive even a generation with only naked techniques of holding power. To the political belongs the idea, because there is no politics without authority and no authority without an ethos of belief.” Or as the Institutes of Justinian put it, in its very first phrases (composed by men who knew something about constructing a stable legal order), “Imperial Majesty should not only be graced with arms but also armed with laws, so that good government may prevail in time of war and peace alike,” and so that the “wickedness” of “trouble-makers” may be driven out “through the paths of the law.” Despotism, rule by willful force alone, begets instability and eventual disorder. The despot, who only ever indulges his transitory and arbitrary impulses rather than acting by and through law classically understood, does not really rule at all, and even in the purely practical order ends up defeating himself by consuming and undermining the sources of his own power. “When the savages of Louisiana want to have fruit, they cut down the tree at its base and gather the fruit. There you have despotic government.”⁵

Overall, radical law-skepticism, whether on the New Right or the critical left, is wrong in itself, misguided as a practical matter, and impossible to reconcile with the broad sweep of the Western (or for that matter non-Western) legal tradition. It is a modernist innovation, just with a different political valence attached to it by the New Right than the valence it holds in liberal legalism. In contrast to both New Right and liberal views, Montesquieu spoke for the classical tradition, in this as in many other things, when he wrote that “Laws, in the most extended sense, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws: the divinity has its laws, the material world has its laws, the intelligences superior to man have their laws, the beasts have their laws, man has his laws.”⁶ In the very first footnote of De L’Esprit des Lois he quoted Plutarch, in turn quoting a fragment of Pindar: “‘The law,’ Plutarch says, ‘is the queen of all, mortal and immortal.’”

This is the true voice of the tradition, and of our founding jurists; Montesquieu is cited more than any other jurist in the Federalist Papers (far more than, say, Blackstone). For the classical lawyer, law is an ordinance of reason for the common good, not merely an ordinance simply, and authority is not will alone, although specification of principles of legal justice into operative legal rules is in part an act of will. Rather genuine authority is the happy union of power with legal justice, ultimately founded on intelligible reason. The existence of genuine authority is of course a condition that is both difficult to attain and difficult to maintain, but that in principle is possible because, and only because, law and legal right is much more than will effectuated through power. One may of course reject the classical view, although it has a strong tendency to come in again by the back door when the jurist isn’t looking, insofar as it is the natural and ordinary way that people think about law. But one may not reject it while also simultaneously claiming to defend or restore the classical and Christian premises of the West, as so many on the New Right understand themselves to be doing.

Law is real, and the rule of law is indispensable to a just and civilized political order; so our whole juristic tradition holds, until just yesterday. Now, neither the reality of law nor the necessity for the rule of law entail that the rule of law is the only thing we care about, or that the rule of law has no outer boundaries, or that the rule of law should be equated with the rule of courts, or that or that (negative) liberty is the only thing the law cares about, or that there are no hard cases. All these mistakes derive from tendentious attempts to appropriate law and the rule of law for various ideological, sectarian, or partisan aims; I and many others have criticized all of them. But it is an equal or even greater mistake to jettison law and the rule of law altogether, or to equate them with the will of the stronger. At a minimum, anyone who holds the latter views should have the candor to confess that they are standing radically outside the traditional mainstream of specifically juristic thought. Until late in the tradition, such views were only ever held by a small minority of heterodox theorists, few of them working jurists. Let us at least have no pose of legal classicism among the law-skeptics, left or right. And, perhaps in a fit of wild optimism, I still hope that the New Right law-skeptics will eschew such sterile and ultimately indefensible views in favor of the fertile ground of the tradition and the reason it embodies, properly translated and adapted to new conditions.

1. I put aside, as immaterial for present purposes, various strands of so-called “natural law originalism” that attempt to fold natural law into the originalist framework. In my view, such approaches fail because they treat natural and divine law as binding not in their own right, but only insofar as positive lawmakers have chosen to incorporate them. They thus offer ersatz versions of the classical view; they don’t really offer a natural law view at all. As for the “originalism” part of natural law originalism, read this.

2. This is not the place for a full treatment of Schmitt. But it is worth saying that just by reading Political Theology, The Concept of the Political, and perhaps a few other of Schmitt’s most famous works at the boundary of political theory, one will have no understanding whatsoever of Schmitt’s properly juristic views. From Schmitt’s agonized relationship to Hobbes, and from his famous apothegm “Sovereign is he who decides on the exception,” many have mistakenly derived the view that Schmitt was himself a “decisionist,” one who sees all law as rooted in the decisions of sovereign will. This could not be more wrong, however. The key is to understand that Schmitt made use of decisionism in a strictly negative fashion, to puncture the pretensions of a type of liberal-positivist view associated with Hans Kelsen, which (at least in Schmitt’s portrayal) claimed that a system of legal rules could be both autonomous and complete. Schmitt called this view “normativism,” and rejected it on the ground that normativism necessarily assumed a normal situation, and could thus not exclude the possibility of exceptional cases. (So too, this is the very same, negative use I have made of Schmitt’s critiques of positivist liberal legalism in my work on executive power). Decisionism was hardly his own affirmative view. As Montserrat Herrero rightly emphasizes in her brilliant synthesis and exposition, when Schmitt offered the first positive statement of his mature legal theory in Three Types of Juristic Thought, he argued against decisionism and in favor of a theory that sees law as a “concrete order,” the indwelling expression of the nomos of a political community. Indeed, as Herrero puts it, “[a]ccording to Schmitt, decisionism starts from certain unacceptable suppositions.” Schmitt’s concrete-order view, although defective in important ways for reasons I explain in text by reference to the jurist Gaius, is closer to the view of the classical jurists than Schmitt’s mis-readers on the New Right and elsewhere understand. (Needless to say, none of this is to defend the particular concrete order of the Nazi regime to which Schmitt briefly gave his allegiance — after combatting it in vain on behalf of right-wing Catholic forces, and out of opportunistic motives rather than theoretical commitment).

3. Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur (Dig. 1.1.9). There is sometimes a confusion here about written versus unwritten law. Nothing in the classical tradition requires a written large-C Constitution, as the tradition has always recognized. Whether it is true that written large-C Constitutions are essentially otiose, as Joseph de Maistre argued, is a separate question that would take me too far afield.

4. When one sees a New Right figure claiming that "[f]or Louis XIV, when he says, 'L'état, c'est moi,' ransacking the state holds no meaning because it's all his anyway," thereby erasing the core distinction of the public law of the ancien régime between the domaine de la Couronne (inalienable public property of the Crown) and the domaine privé (patrimonial property of the king), erasing indeed the very distinction between the King’s two bodies, political and personal — one can only imagine Bodin and Jean Domat staring in astonishment.

5. “Quand les sauvages de la Louisiane veulent avoir du fruit, ils coupent l’arbre au pied, et cueillent le fruit. Voilà le gouvernement despotique.” Montesquieu, De L’Esprit des Lois (EL) 5,13.

6. “Les lois, dans la signification la plus étendue, sont les rapports nécessaires qui dérivent de la nature des choses; et, dans ce sens, tous les êtres ont leurs lois; la Divinité a ses lois ; le monde matériel a ses lois ; les intelligences supérieures à l’homme ont leurs lois ; les bêtes ont leurs lois ; l’homme a ses lois.” Montesquieu, EL I.